An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
In 1996 in the case of S v Moses, for example, the
It was therefore good news to read that a similar defence failed recently in the case of Lebogang Mohlakoana, who was yesterday convicted of murder for killing his friend, William Thomas, and cutting off his genitals. News24 reports:
Police discovered Thomas’ naked in a pool of blood in his lounge and his private parts tucked under a dressing table in his bedroom. Thomas’s neighbours had called the police and stopped Mohlakoana from escaping.
Mohlakoana denied guilt on the murder charge, claiming he had acted in self-defence after Thomas made unwelcome sexual advances and tried to attack him with a knife. He testified that he was so “shocked and horrified” about his friend’s death that he could not even look at photos of the bloody murder scene.
I suspect in 1996 it was still possible for a judge to believe that a person could be so traumatized by a sexual advance from a member of the same sex, that he would go totally bossies. Similarly, twenty years earlier a judge may well have accepted evidence by a white man claiming that he killed a black women in a fit of madness after she had made sexual advances towards him,
But given the fact that our Constitution now guarantees equality for all and prohibits discrimination on the basis of sexual orientation, even the most traditional judge would find it difficult to believe a story like that put to the court in the Mohlakoana case.
I suspect this is an example of the way in which constitutional values influence society for the better. When the Constitution contains a prohibition against sexual orientation discrimination, it does more than help gay men and lesbians to claim their rights – it actually helps to educate the judges and members of the public and contribute to a sea change in the broader culture.
Of course, the fact that Mr. Moklakoane and his lawyers thought that this was a credible defence to advance, means that there is still a long way to go before respect for people of different sexual orientation than the statistical norm are taken for granted.BACK TO TOP